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The San Diego County Bar Association has a recent ethics opinion on the dilemma faced by a defense attorney questioned by a judge about a non-appearing client:

Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way. She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information.

The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.” If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before. If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information. Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]). Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.

The Georgia Supreme Court affirmed the grant of habeas corpus relief to a defendant who had been charged with kipnapping and pled guilty to false imprisonment. After serving a sentence of probation, the defendant (a lawful permanent resident from Uzbekistan) was scheduled for deportation. He then moved to vacate his plea. The State appealed the grant of the writ.

The kidnapping charges arose from an incident where the defendant was driving a car with a friend in the passenger seat. They

came upon a young woman, in whom [the friend] had a romantic interest, and they pulled up to her. [The friend] got out and physically forced the victim into the car, telling her that he loved her; the men drove around for a few minutes; and they released her near the place they had picked her up.

One attorney represented both defendants in the ensuing criminal case. The friend retained and paid the attorney. The defendant never met with the attorney outside the presence of the friend or the friend's family. The attorney never raised the issue of potential conflicts or told the defendant her could secure his own counsel. Nor did the attorney advise the defendant of possible deportation. (Mike Frisch)

Yesterday, Bob Morse of U.S. News published a blog post in which he signaled a change in the law school rankings methodology, specifically with regard to employment. The prevailing view on the law school administrator list-serves (which nearly a dozen people have forwarded to us) is that U.S. News will be increasing the weighting of "employed at graduation," presumably because U.S. News Editor Brian Kelly sent a letter to law school deans--reprinted in Bob's blog post--discussing the importance of employed-at-graduation as a metric.

We have zero inside information, but we are willing to bet a substantial sum that any methodology change will be in a completely different direction. Here is why. Over the last decade, fewer and fewer schools have been supplying U.S. News with employed-at-graduation data. Employment at graduation is not a statistic required or collected by the ABA; as such, its accuracy cannot be checked through cross-reference to the annual ABA-LSAC Official Guide.

But much more significantly, when a school fails to provide this data, U.S. News has--up until now--imputed the figure based on employment at 9 months. (Kudos to Ted Seto for unraveling this mystery. See Understanding the U.S. News Law School Rankings.) Crudely speaking, the magazine applied a roughly 30% discount rate on the employed at 9 months figure. Earlier this year, Paul Caron suggested that if a school's employed-at-graduation rate is more than 30% lower than its employed at 9 month rate, it is "rankings malpractice" to supply U.S. News with the data.

As readers can see from the above chart (generated by Paul Caron in his rankings malpractice post), a large proportion of law schools have figured out the payoffs. Over the last decade, the percentage of non-reporting schools has skyrocketed. With this information in mind, Bob Morse's blog post may seem less cryptic: [after the jump]

The Indiana Court of Appeals has affirmed a criminal conviction for attempted possession of marijuana by a criminal defense attorney who had claimed his actions were legally justified in defense of a client. It is quite a tale.

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant. His plan was to destroy the informant's credibility by showing that he was still dealing drugs. He arranged for two juveniles to purchase marijuana from the informant and assured the two that the conduct was legal.

He provided the juveniles with $200 to fund the purchase, recorded the serial numbers and arranged to tape the buy. The buy went down, but the juveniles were not totally trustworthy. They used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney did not take possession of the drugs, but told the juveniles to hold the evidence. Once again they proved less than trustworthy. They smoked it instead.

The attorney sought the $200 from the client's mother, telling her that it was a litigation cost.

The attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. As a result, he was charged with the crime.

The court rejected a number of contentions. The attorney did not stand on the same footing as a law enorcement official conducting an undercover drug buy:

In sum, [the attorney] asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense [of] his client...This is not a close case."

A conviction for simple robbery was reversed by the Kansas Supreme Court as a result of the trial court's failure to grant the attorney's motion to withdraw. At an ex parte chambers conference, the attorney stated to the judge that he had reviewed a surveillance video and concluded that it depicted his client in the act of the crime. The client denied it and the video was "grainy." The attorney contended that he was precluded "from presenting the evidence that [the client] wanted introduced."

The court found that the attorney's position

ignore[d] the separation of duties in a criminal prosecution...[the attorney's] duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. [The attorney] exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if [the attorney's] refusal to introduce evidence on [the client's] behalf was based on [his] out-of-bounds determination of guilt, rather than on the falsity of the evidence, [the client's] dissatisfaction was justified.

The Montana Supreme Court has affirmeda criminal conviction despite the fact that co-defendants were represented by different offices of the state public defender. The Missoulian reports:

The Montana Supreme Court on Thursday upheld the conviction of Anthony St. Dennis in the 2007 beating death of Forrest Clayton Salcido, a sometimes-homeless veteran from Missoula, saying there was no conflict of interest in his defense.

Both St. Dennis and his co-defendant in the case, Dustin Strahan, were represented by public defenders, a situation that Missoula attorney Colin Stephens claimed violated St. Dennis' constitutional rights.

In response to that appeal, the state contended that "significant hardships" would arise if the Supreme Court ruled that the public defender's office could not represent co-defendants.

St. Dennis, who was an 18-year-old Hellgate High School senior at the time, was one of two men accused of fatally beating and stomping Salcido, 56, near the California Street footbridge along the Clark Fork River trail in Missoula.

Strahan, then 21, testified against St. Dennis when the latter was convicted of deliberate homicide by a Hill County jury in Havre, where the case was moved because of pretrial publicity. St. Dennis eventually was sentenced to 100 years in prison, ineligible for parole for 40 years.

Strahan then cut a deal, pleading guilty to accountability for deliberate homicide in Salcido's death.

Stephens argued to the Supreme Court in July that "one is directly pointing the finger at the other and is represented by an attorney out of the same law firm" - in this case, the Montana Office of Public Defender.

But the Supreme Court found in its 22-page opinion Thursday that such situations should be considered on a case-by-case basis. The court also rejected St. Dennis' contention that the District Court abused its discretion when it denied his requests for immunity for a proposed witness. And it denied his motion for a new trial.

The main focus of the opinion, however, concerned the conflict issue.

"Clearly, no system is fool-proof," Justice Patricia Cotter wrote in the majority opinion. "A conflict of interest could at some point arise out of OPD's operations. However, given the current strong precautions and safeguards, including ethical walls, in place at OPD, dual representation of co-defendants by attorneys in different offices has not created an actual conflict of interest."

Justice Nelson dissented and would find that the treatment of the two public defender offices as separate firms to be "an artificial distinction that is not supported by actual practice within the public defender system...In point of fact, the idea that regional public defender offices are separate and independent is a myth."

Justice Nelson notes that the same public defender appointed the attorneys for both defendants, which "indicates that [the deputy public defender's] authority and supervisory capacity extended over all four attorneys. " The two clients were, most assuredly, directly adverse to each other.

The majority took the ACLU as amicus to task for referring to correspondence outside the record. Justice Nelson contends that the letters at issue "exemplify [the deputy public defender's] authority over and supervision of the counsel he appointed from both regional offices." The letters reflect that the deputy public defender "chastise[d one of the supervised attorneys] for the position she was taking...regarding the examination of some of the physical evidence by an OPD approved expert in Florida." She responded that "they are supposed to be acting as separate offices with respect to these two cases and, as such, she would not hesitate to act in her client's best interests."

Justice Nelson would remand to the district court to consider the conflicts issue in light of the information reflected in the letters.

There may be a problem with the link. The case is State v. St. Dennis, decided October 28, 2010. (Mike Frisch)

The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing a lawyer’s use of a contingent fee agreement in which a client grants a power of attorney to the lawyer as to all aspects of a legal matter.

Opinion 2010-6 notes the “ethical risks” that exist with a power of attorney granting a lawyer authority to make all decisions and execute all documents that the lawyer deems necessary in a client’s contingent fee matter. It also states that “in the absence of extraordinary circumstances, the practice is unethical for the lawyer and shortchanges the client’s role in legal representation.”

The opinion finds that “such use of a broad power of attorney in a contingent fee agreement contravenes Prof. Cond. Rule 1.2(a) by improperly allocating all of the authority regarding the representation from the client to the lawyer and disregards Prof. Cond. Rule 1.4(a) by eliminating required communication by the lawyer to the client.”

The opinion further notes that “a lawyer’s contingent fee representation of a client in a civil matter requires skillful communication. A lawyer must communicate effectively to understand the client’s objectives of representation, explain settlement offers, reach agreement to settlement terms, obtain necessary client signatures, and disburse settlement proceeds. Such communication is a time honored legal skills, but is a time laden process.”

Through the generosity of the AALS Section on Professional Responsibility and the hard work of many people and especially its editor Margaret Tarkington, a BYU law prof who is visiting at Cinncy right now, comes the fall newsletter: Download Fall_2010_Newsletter. It contains recent developments, bibliography, a letter from the Chair, and announcements including job postings, conferences, calls for papers, and the like. Margaret's own recent article contributing to this field is The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567 (2009). [Alan Childress]

The second Miller-Becker Center for Professional Responsibility Distinguished
Lecture in Professional Responsibility is scheduled for Friday, Oct. 29, 2010, at 4:00
P.M. at the University of Akron School of Law. Ronald D. Rotunda, the Day &
Dee Henley Chair and Distinguished Professor of Jurisprudence, of Chapman
University School of Law, is the Distinguished Lecturer and his presentation is
entitled Lawyers:
Why We Are Different and Why We Are the Same. Rotunda's
presentation, in part, asks: “To what extent do the ethics
rules make lawyers different from other professionals?" He is shown right.

This is right on the heels of a great new contribution to the field by the center: its first symposium law review issue on the legal profession, this one on the topic of Lawyers without Borders and Practicing Law in the Electronic Age, 43
Akron L. Rev. 1-1105 (2010), and featuring articles and essays by excellent scholars in those areas. I really appreciate that they mailed one to me and lots of other teachers of legal ethics, and I have it sitting on my desk. Well done.

The Kansas Supreme Court reversed a finding of criminal contempt against a county chief public defender who had refused to testify in response to the prosecutor's subpoena.

The public defender had represented a defendant in a first degree murder case. A client represented by the public defender's office in an unrelated case was incarcerated with the defendant. That client advised a public defender attorney of an intent to commit perjury at defendant's trial. The public defender advised the court of this (but did not identify the potential perjurer) and was granted leave to withdraw.

The prosecutor then dropped the charges. When charges were refiled, the prosecutor issued a subpoena to the public defender seeking to compel the disclosure of the other client's identity. There were seven public defender clients who were locked up with the defendant.

The court applied the Kansas Rule of Professional Conduct 3.8(e) governing subpoenas to defense counsel and held that the withdrawing public defender's

summary of her former client's expression of an intention to commit perjury...is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender's office "in order to enable or aid the commission or planning of a crime or tort."

The summary did not waive the attorney-client privilege. Indeed, the public defender admitted that she had made disclosures in violation of the duty of confidentiality. The court held that the record failed to establish that the prosecution had no feasible alternative to obtain the information sought from defense counsel:

Although [the detective who testified at the contempt hearing] said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were implemented and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce [the public defender's] testimony.

The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:

In this appeal, we have the duty to
publicly reiterate the importance of submitting attentive appellate
briefs and the unfortunate obligation to address the unforgiving
consequences resulting from a respondent’s failure to respond to
relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation
under the Sixth Amendment of the United States Constitution and Crawford
v. Washington, 541 U.S.
36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was
violated when the findings of a gunshot residue analyst who did not
testify at trial and was not subject to cross-examination were
admitted. In its answering brief, the State failed to directly address
the Crawford and Melendez-Diaz issue or argue, alternatively, that any
potential constitutional violation was harmless error. Polk argues in
his reply that because the State failed to respond to Polk’s alleged
constitutional violation, it effectively confessed error under NRAP
31(d). We agree and reverse and remand for a new trial.

The State failed to respond to a critical issue:

We recognize that the State filed a lengthy
answering brief addressing Polk’s other issues on appeal; however, the
State failed to address Polk’s argument that his constitutional right to
confrontation under Crawford and Melendez-Diaz was violated. This is a significant
constitutional issue that compels a response. The issue was clearly
raised in Polk’s opening brief and reply brief, the argument regarding
it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State
filed its answering brief six weeks later, on September 10, 2009. In
Polk’s reply brief, he explicitly referenced the State’s failure to
directly address the constitutional issue. Even after being notified of
its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its
response and elected to wait until oral argument to address the
constitutional issue or harmless error. Such appellate practice causes
prejudice to Polk’s ability to adequately prepare for or respond during
oral argument.

Accordingly, we grant Polk’s oral
motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument.
Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal,
but the State failed to address or even assert that any potential
violation was harmless error, we invoke our authority under NRAP 31(d)
and consider the State’s silence to be a confession of error on this
issue.

A recent admonition is summarized on the web page of the Massachusetts Board of Bar Overseers:

In June 2007,
the respondent met with a long-standing client and her mother. The
client informed the respondent that her mother was terminally ill and
her death imminent. The two women informed the respondent that they had
reached an agreement that they wanted the respondent to memorialize
concerning a house the mother owned.

The respondent
understood that his client had agreed to let her mother live with her
and that the client would fund a trust for the children of the mother’s
other daughter in return for the mother’s transfer of her home to the
client. The mother’s home was then uninhabitable.

The agreement
that the respondent drafted called for the client to fund the trust
within two years and had no practical means for enforcement. In
addition, the agreement had no provision requiring the client to have
her mother live with her or remedy for the mother if she did not. The
client paid the respondent a minimal fee for drafting the agreement.

The respondent
failed to clearly explain to the mother that he was not representing her
interests. The mother reasonably believed that the respondent was
providing legal services to her as well as to her daughter. The mother
did not understand that, without a provision in the agreement requiring
her daughter to have her live with her, her interest in living with her
daughter or in having her daughter provide similar care was not
protected. The respondent should have known that the client’s mother
might have misunderstood his role as the client’s lawyer only, but he
did not make reasonable efforts to correct her misunderstanding and did
not advise her that the only advice he could give her was the advice to
retain counsel.

By August 2008, a
dispute arose between the client and her mother. The client’s mother
was forced to move from the client’s home. In October 2008, the client
sold the property. The client’s mother died in January 2009.

The respondent’s
failure to explain his role sufficiently to the client’s mother when he
reasonably should have known that she misunderstood his role in the
matter violated Mass. R. Prof. C. 4.3(a).

This is kind of misconduct that should be covered in any law school ethics class. I'm sure most of us describe situations just like the one presented here in explaining the responsibility of an attorney to make clear who is or is not represented in a transaction. Where the non-client is elderly and infirm, there is the enhanced possibility for manipulation and abuse by the attorney and the client. (Mike Frisch)

The Ethics Committee of the South Dakota State Bar opines that a contingent fee may be charged in a contract action betwen domestic partners. Rule 1.5(d) prohibits such arrangement in domestic relations actions involving divorce, support or the value of a property settlement. The claims here do not fall within the prohibitions:

...since the desired recovery is based on a cash transaction for the purchase of real property, it is much more in the nature of an ordinary contract action than a domestic relations action. It is therefore not subject to the restrictions of Rule 1.5(d) and a contingent fee is permissible.

The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:

The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill.

An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.

The circuit court granted the motion for disqualification. The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.

The court concluded:

We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor. The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.

The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal. This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)

Thanks again to the excellent generosity of the Section on Professional Responsibility of the AALS, which generosity and excellence we have noted before, we provide to you the latest issue of the newsy Newsletter.
Download Spring_2010_PR_Newsletter. It has lots of substantive law and rule changes, all dealing with legal ethics, as well as calls for papers and conferences in the field. This issue includes a brief article on the judge as Facebook friend, an issue that Mike on this blog has also raised here (Florida) and here (South Carolina).

From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:

Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel.[2] Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.

And footnote 2 itself is classic: "[2] The ethical equivalent of a 'Please kick me' sign."

Couldn't make this stuff up if we tried. Hat tip to my buddy Scott Unger for this one.

The web page of the District of Columbia Bar reports this rule change:

The District of Columbia Court of Appeals has adopted amendments to the rules governing the Interest on Lawyers’ Trust Accounts recommended by the D.C. Bar Board of Governors.

The amendments, which go into effect on August 1, make participation in the IOLTA program mandatory for D.C. Bar members who receive IOLTA-eligible funds, except when a lawyer is otherwise compliant with the contrary mandates of a tribunal, or when the lawyer is participating in and compliant with trust accounting rules and the IOLTA program of the jurisdiction where the lawyer is licensed and principally practices.

The court also adopted interest rate comparability provisions for banking institutions in which Bar members are permitted to hold client funds.

The revisions amend Rule 1.15 of the D.C. Rules of Professional Conduct and delete Rule 1.19 and Appendix B to the rules. Some provisions of former Rule 1.19 and Appendix B were moved to Rule 1.15 and to a new Section 20 to Rule XI of the D.C. Court of Appeals Rules Governing the District of Columbia Bar.

The revised rules are intended to boost funds distributed by the D.C. Bar Foundation to local legal service providers by increasing revenue from D.C. IOLTA and interest paid by banks on funds held in these accounts. The revisions also provide greater clarity to the trust account ethics rules.

A proposal addressing monitoring of D.C. Bar members’ participation in the IOLTA program by the Bar Foundation was not forwarded to the court but reserved for further study by the D.C. Bar Regulations/Rules/Board Procedures Committee.

The Board of Governors sent its recommendations to the court in September 2009, and the court published the recommendations for a public comment period. The recommendations were based on the work of the Bar Foundation and the Bar’s Rules of Professional Conduct Review Committee that began in 2006.

For more information on the revised rules, contact legal ethics counsel Hope C. Todd at 202-737-4700, ext. 3231, or Saul Singer at 202-737-4700, ext. 3232, or by e-mail at ethics@dcbar.org. For information on how to set up an IOLTA, visit www.dcbarfoundation.org.

The Nebraska Supreme Court affirmed the dismissal of legal malpractice and related claims brought against the former attorney of a company that performed radiology services. The attorney was corporate counsel to Radiology Services from 1995 to 2003. Her father was a senior official of the company and there was concern that he had a drinking problem. After he left the company, the father sent letters to entities that did business with the company and it was alleged in this lawsuit that three clients stopped doing business with the company after the letters were received.

The complaint alleged that the attorney had improperly assisted her father in retirement negotiations with the company (he was the president at the time) and had misused the company's confidential trade secrets.

The court found that the trial court had properly concluded that, viewed in the light most favorable to the company, there was insufficient evidence to establish legal malpractice or misuse of trade secrets by the company's former counsel. (Mike Frisch)

The Massachusetts Supreme Judicial Court affirmed the denial of a motion for new trial in a case that involved an undisclosed previous intimate relationship between defense counsel and a prosecutor who was not involved in the case (the "ADA"). The defense attorney also had dated the trial prosecutor many years before the trial.

The key facts:

While he was representing Stote, Walsh and the ADA attended a concert
together in late March, 1999, and began dating, seeing each other on
weekends, until approximately April, 2000. When this relationship
began, Walsh had already prepared and filed Stote's first motion.
During the course of Walsh's relationship with the ADA, the first motion was
denied after a nonevidentiary hearing, and Walsh prepared and,
possibly, filed Stote's appellate brief.

The affidavits of
Walsh and the ADA reveal the following facts about the nature of their
relationship. The ADA attests in her affidavit that she and Walsh did
not live together at any time during their relationship. Walsh
similarly attests that they lived separately. The ADA also states that
she does not know whether the relationship was "monogamous." Although
neither affidavit states whether the relationship was sexual, we can
safely assume that it was, given that the relationship lasted more than
one year, the participants were mature adults, neither of them has
denied it, and the ADA's reference to a "monogamous" relationship
implies as much. The ADA further states that Walsh did not bring legal
work to her home, did not to her knowledge receive telephone calls at
her home regarding legal matters, and did not discuss Stote's case with
her or disclose confidential information to her. She states that, while
she and Walsh were seeing each other, they did not "substantively" discuss their "respective legal concerns" and that their work did not "overlap in any respect." Although she was
aware that Walsh was working on "an appellate brief," she did not know
of its contents, and "even if" she knew the defendant's name "at that
time," she did not know anything about Stote's case until she read our
2000 opinion, which was issued after the relationship ended. Walsh
similarly attests that he did not discuss Stote's case or appeal with
the ADA and that he did not disclose any confidential information to
her. Shortly after the relationship ended, according to the ADA's
affidavit, Walsh began living with another woman whom he later married.

The ADA's affidavit also indicates that she did not participate in the
preparation of the Commonwealth's brief in Stote's appeal. The trial
prosecutor, in her affidavit, attests that she alone wrote the
Commonwealth's opposition to Stote's first motion and, later, the
Commonwealth's appellate brief without the assistance of anyone in the
district attorney's office, other than submitting the brief to her
superiors for approval. The trial prosecutor further states that she
did not discuss any aspect of the Stote case with the ADA.

Although, in accordance with the single justice's decision, we do not
consider whether Stote is entitled to a new trial due to any alleged
conflict of interest arising from Walsh's previous
relationship with the trial prosecutor, some facts concerning that
relationship are relevant to our decision. In 1979 and 1980, Walsh and
the trial prosecutor dated, but lived separately. Their dating
relationship ended amicably in 1980, some seventeen years before
Stote's trial. Walsh and the trial prosecutor maintained a cordial and
professional relationship thereafter. Both Walsh and the trial
prosecutor eventually went on to marry others, in Walsh's case, as
stated above, after his relationship with the ADA ended.

The court concludes:

Stote argues on
appeal that, because of Walsh's relationship with the ADA, Walsh failed
to argue that he was burdened by a conflict of interest at trial
arising from his previous intimate relationship with the trial
prosecutor, depriving Stote of the effective assistance of appellate
counsel. We disagree. First, the judge found that the intimate
relationship between Walsh and the trial prosecutor had ended seventeen
years before Stote's trial and gave rise to no actual conflict of
interest. Second, as to any potential conflict of interest
arising from Walsh's relationship with the trial prosecutor, the judge
pointed out that Walsh "had no hesitation whatsoever in lambasting [the
trial prosecutor] for her alleged transgressions at trial" and
concluded that "Walsh vigorously represented the defendant both at
trial and on appeal." Much of our opinion in Stote's direct appeal is
devoted to disposing of Walsh's charges concerning the trial
prosecutor's conduct of the trial. Stote also argues that Walsh, as his trial
counsel, deprived him of effective assistance due to various failures
and omissions at trial, such as failing to investigate and develop
certain evidence that would have supported Stote's defense. Due to the
limited scope of review authorized by the gatekeeper, this claim is
properly before us only to the extent that it might establish material
prejudice arising from Walsh's relationship with the ADA...Accordingly,
to obtain relief on this basis, Stote would have to show not only that
the asserted failures at trial constituted ineffective assistance of
counsel (that is, that if these asserted failures had been raised in
Stote's direct appeal, the conviction would have been reversed), but
also that the relationship with the ADA was what prevented Walsh from
raising such claims in the direct appeal. Whatever the merits of the
former element, Stote cannot establish the latter. Stote offers no
reason to believe that, but for the relationship, Walsh would have
raised these issues and thereby accused himself of ineffective
assistance. Put another way, supposing that Walsh had not been involved in a relationship with the ADA or anyone else in the district attorney's office and that he was therefore under no
potential conflict of interest, he nonetheless would not have argued in
the direct appeal that he deprived Stote of effective assistance at
trial. In these circumstances, the relationship did not affect the arguments raised
in Stote's direct appeal. Stote has not shown that any potential
conflict of interest arising from his attorney's relationship with the
ADA resulted in any material prejudice to him.

Conclusion. We conclude that
in the circumstances of this case, there was neither an actual conflict
of interest nor a potential conflict that resulted in material
prejudice in Stote's appeal. We remind members of the bar of their
professional obligation under rule 1.7(b) to disclose to their clients
any intimate personal relationship that might impair their ability to
provide untrammeled and unimpaired assistance of counsel. Even if an attorney reasonably believes that he or she can
continue to represent the client vigorously, the attorney should err on
the side of caution by disclosing the relevant facts, which need not
include the name of the third person, and asking whether the client
consents to the representation.(citations and footnotes omitted)